SafeWork NSW v Western Sydney Local Health District (No 3)

[2025] NSWDC 48

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Western Sydney Local Health District (No 3) [2025] NSWDC 48

Hearing dates:

05 December 2024

Date of orders:

10 March 2025

Decision date:

10 March 2025

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1. The nurses’ statements of their subjective feelings to others is admissible.

Catchwords:

EVIDENCE — Hearsay — Exceptions

EVIDENCE — Relevance

Legislation Cited:

Evidence Act 1995

Work Health and Safety Act 2011

Cases Cited:

Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467

Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676

Kirk v Industrial Court of New South Wales (2010) 239 CLR 531

Prime Marble & Granite Pty Ltd v SafeWork NSW [2024] NSWCCA 105

R v Board of Trustees of the Science Museum [1993] 1 WLR 1171

Saunders Civilbuild Pty Ltd v SafeWork NSW [2023] NSWCCA 261

Tame v New South Wales (2002) 211 CLR 317

Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015

Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94

Texts Cited:

Safe Work Australia National Guidance Material, Work-related psychological health and safety: A systematic approach to meeting your duties, January 2019

Category:

Procedural rulings

Parties:

SafeWork NSW (Prosecutor)
Western Sydney Local Health District (Defendant)

Representation:

Counsel:
T McDonald SC with B Docking (Prosecutor)
B Hodgkinson AM SC with E Aitken (Defendant)

Solicitors:
Legal, Department of Customer Service (Prosecutor)
Ashurst Australia (Defendant)

File Number(s):

2022/346679

Publication restriction:

None

RULING

Introduction

1. Western Sydney Local Health District (WSLHD) has pleaded not guilty to a Category 3 offence that as a person with a health and safety duty under s 19(1) Work Health and Safety Act 2011 (the Act) that it failed to comply with that duty, contrary to s 33 of the Act.

2. WSLHD is responsible for the operation of Mental Health Services at Cumberland Hospital, Westmead Hospital and Blacktown Hospital. Between August and November 2020, WSLHD employed a Registered Nurse (the RN) and an Endorsed Enrolled Nurse (the EEN) at Cumberland Hospital in the Hainsworth Unit, a secure mental health facility (the ward). [1] At all material times the RN and the EEN were in a domestic relationship. At about 5pm on 16 August 2020 there was an incident on the ward where a patient was put into seclusion after she had absconded from the ward (the seclusion incident). Complaints were made about the conduct of the nurses in the seclusion incident and it became the subject of an investigation. The prosecution case is that the investigation was poorly handled and as a result, the nurses were exposed to psychosocial hazards, namely poor organisational justice and the failure to adequately resolve grievances in the workplace.

   1. I am satisfied that it is not necessary to protect the principles of open justice to identify the EEN or the RN by name in this judgment. I have made a non-publication order to prevent the publication of the name of the patient involved to protect her privacy.

3. Tragically, both nurses died in November 2020. It is not alleged that the WSLHD’s conduct caused their deaths or that either of them suffered psychological or physical harm as a result of WSLHD’s breach of duty.

4. During the course of the trial, WSLHD objected to the admission of statements made by the nurses to others relating to their subjective feelings, on the basis that the evidence was not relevant to the s 33 offence, because it was not an element of the offence that WSLHD’s conduct exposed them to a risk of physical or psychological harm.

5. It was common ground that the out-of-court statements made by the nurses as to their subjective feelings were admissible pursuant to s 65 or s 66A Evidence Act 1995.

6. I admitted the evidence in the trial, and these are my reasons for doing so.

The Relevant Law

7. Section 55 Evidence Act 1995 provides:

(1)   The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

(2)   In particular, evidence is not taken to be irrelevant only because it relates only to--

(a)   the credibility of a witness, or

(b)   the admissibility of other evidence, or

(c)   a failure to adduce evidence.

8. Section 19(1) of the Act imposes a duty on a person conducting a business or undertaking (PCBU) to ensure, so far as is reasonably practicable, the health and safety of workers engaged by it, while at work in the business or undertaking.

9. “Health” is defined to mean psychological and physical health: s 4 of the Act.

10. The requirement to “ensure” means to guarantee or make certain: Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 470.

11. Safety cannot be ensured if a risk to the health and safety of a worker exists. The existence of the risk constitutes a breach of s 19 of the Act. It is not necessary that there is an accident or that a person is injured: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [13].

12. The word “risk” is not defined in the Act. Risk means the mere possibility of danger and not necessarily actual danger: R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 and Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94 at [67].

13. An incident causing injury may be evidence of the presence of a risk and may be relevant to sentencing as a measure of the severity of the harm suffered as a result of the risk. But a distinction must be drawn between the specific risk that manifested in the incident and the general class of risk that the analysis must focus on. Paying too close attention to the specific risk resulting in an incident can lead to error: Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 and Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 at [3]-[6].

14. In Saunders Civilbuild Pty Ltd v SafeWork NSW [2023] NSWCCA 261 at [157]-[161] Walton J stated:

[157] An offence pursuant to s 32 of the WHS Act for a breach of a s 19 duty is directed to the risk to health and safety and is not dependent upon the manifestation of the risk: Director of Public Prosecutions (Vic) v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676: [2016] VSCA 55 at [682]. As the High Court noted in Kirk at [13], it is not necessary that the worker has suffered injury or illness for there to have been a breach of the duty.

[158] A breach of s 19(1) of the WHS Act may occur in consequence of a failure to take a measure which would have managed or mitigated a risk to the health, safety and welfare of a person not in the employ of the employer, even if the measure does not entirely eliminate risks: Bulga at [118]. However, exposure to risk must be real and not theoretical.

[159] The duty created is directed to obviating risks to safety at the workplace, even absent an actual incident causing injury. The duty is both preventative and remedial in nature: Morrison v Powercoal Pty Ltd (2004) 137 IR 253; [2004] NSWIRComm 297 (‘Morrison’) at [97(3)] and [97(4)] and WorkCover Authority (NSW) (Inspector Legged) v Coffey Engineering Pty Ltd (No 2) [2001] NSWIRComm 319; (2001) 110 IR 447 (‘Coffey Engineering’) at [16] approving WorkCover Authority (NSW) v Police Service (NSW) (No 2) [2001] NSWIRComm 90; (2001) 104 IR 268 at [20]; Abigroup at [316]. In Bulga, the Court of Criminal Appeal found (at [124]):

[124] The appellant contended that the requirement was to avoid exposure to risk, rather than to prevent an actual occurrence. This may be accepted, however, it does not mean that the section cannot be breached by the failure to take action to prevent a risk, to which an employee was exposed, from crystallising. To reach a contrary conclusion would be to ignore the self-evident fact that the duty will arise in circumstances where there is an exposure to a risk in respect of which preventative measures can be taken.

(see also Hunter Quarries Pty Ltd v Morrison; Badior v Morrison (2017) 96 NSWLR 658; [2017] NSWCCA 326 (‘Hunter Quarries’) at [69]).

[160] Thus, it is wrong, in considering whether a breach has occurred, to reason from the actual incident causing injury ‘as such an approach may lead to a misunderstanding of the real facts on which a charge is based’: Morrison at [97(5)].

[161] Further, the observations of the Court of Criminal Appeal in Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266 at [55], (Basten JA with whom Beazley P (as her Honour then was) and Wilson J agreed) are apposite in this respect (and also address the meaning of ‘risk’):

[55] While prosecutions for breach of occupational safety laws are rarely, if ever, brought where there has not been a serious injury or death, the test of breach of duty nevertheless remains prospective. However, there are different levels of particularity at which risks can be assessed. Prospectively, a reasonably broad approach may be appropriate; by contrast, a retrospective analysis of the precise circumstances of an injury or fatality may lead to a narrow description of the risk which materialised. While the accident may demonstrate the existence of a risk, it may not demonstrate that the risk was prospectively foreseeable, nor that the consequences were necessarily serious; generally, the precise circumstances of the accident should not be relied on to define the risk. The word ‘risk’ is not defined in the Act. Risk means the mere possibility of danger and not necessarily actual danger: Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94 at [67]; R v Board of Trustees of the Science Museum [1993] 1 WLR 1171. Relevant risk to the commission of a s 32 offence is the risk of death or serious injury.”

15. Serious injury or illness is defined in s 36 of the Act to mean:

…an injury or illness requiring the person to have--

(a)   immediate treatment as an in-patient in a hospital, or

(b)   immediate treatment for--

(i)   the amputation of any part of his or her body, or

(ii)   a serious head injury, or

(iii)   a serious eye injury, or

(iv)   a serious burn, or

(v)   the separation of his or her skin from an underlying tissue (such as degloving or scalping), or

(vi)   a spinal injury, or

(vii)   the loss of a bodily function, or

(viii)   serious lacerations, or

(c)   medical treatment within 48 hours of exposure to a substance,

and includes any other injury or illness prescribed by the regulations but does not include an illness or injury of a prescribed kind.

Relevant Guidance Material

16. Ensuring that a workplace is psychologically safe involves the control of exposure to psychosocial hazards in the workplace.

17. The Safe Work Australia National Guidance Material, Work-related psychological health and safety: A systematic approach to meeting your duties, January 2019 relevantly identifies the following psychosocial hazards:

• Poor workplace relationships to include conflict between workers and supervisors and a lack of fairness or equity in dealing with organisational issues or where performance issues are poorly managed, and

• Poor organisational justice to include the inconsistent application of policies and procedures and poor management of underperformance.

18. The National Guidance Material provides that: [2]

    2. National Guidance Material at p 9.

• Psychosocial hazards in the workplace can lead to the risk of work-related stress.

• A stress response is the physical, mental and emotional reactions that may occur when a worker perceives that the demands of their work exceed their ability or resources to cope.

• Work-related stress if prolonged and/or severe can cause both physical and psychological injury.

• Stress itself does not constitute a physical or psychological injury.

• Workers may be exposed to a combination of psychosocial hazards, in the workplace and otherwise.

The Prosecutor’s Case

19. The prosecutor’s case is that the investigation into the seclusion incident was poorly handled because WSLHD failed to apply its own policies and procedures. There are two aspects to the prosecutor’s case that can be summarised as follows.

The first aspect

20. The investigation was commenced by David Gollan, the Acting Nurse Manager for Acute Services, asking the EEN inappropriate questions in an inappropriate setting without conducting a risk assessment and the circumstances of the meeting caused the EEN distress, which she later reported to Janine Van Bruinessen, the Nurse Manager for Rehabilitation Services and other staff. Ms Van Bruinessen reported the EEN’s complaints to Human Resources. The first aspect of the prosecutor’s case is that WSLHD failed to take appropriate action regarding the EEN’s complaints against Mr Gollan.

The second aspect

21. When Human Resources found out that Mr Gollan was conducting a fact-finding exercise in relation to the seclusion incident they directed him to stand down and took over the investigation. It was determined that the nurses should be the subject of a Clinical Review, which was not a disciplinary process, but could lead to disciplinary action if the Clinical Review Panel made adverse findings against either of them. It was also decided that the nurses should not perform clinical duties while the Clinical Review was underway, and that they would be required to undertake administrative duties. Nirav Thakker, the Acting Deputy Director of Nursing, telephoned each of the nurses on the evening of Friday 25 September 2020 and told them they would receive a letter by email shortly stating that they had been removed from clinical duties pending an investigation and that they were to report to the Acting Director of Nursing at 8.00am on Monday 28 September 2020 where they would be allocated administrative duties. The nurses then consulted Nicholas Howson, the Union Representative. The communications between the nurses and Mr Howson over the next few days contained statements that they were concerned, upset and stressed by the news that they were to be the subject of a Clinical Review. When the nurses attended the Acting Director of Nursing’s office on the Monday morning, she was not there and did not know of the purported arrangements. The nurses spoke to Mr Thakker in the presence of Mr Howson. They had not received the letter by that time, and did not do so until later that day. The Clinical Review Panel interviewed the nurses on 22 October 2020 and other staff on 26 October 2020. The Clinical Review Panel published its decision on 6 November 2020. In the period between receiving the telephone call from Mr Thakker and the completion of the Clinical Review process the nurses made a number of statements to other staff about how they were feeling. The second aspect of the prosecutor’s case is that WSLHD failed to apply its own policies to the Clinical Review process and that gave rise to a risk of physical or psychological harm to the nurses.

Consideration

22. WSLHD contended that the evidence of the subjective feelings of the nurses was not admissible to prove the existence of the risk, because a PCBU is required to respond to foreseeable risks prospectively and it is inappropriate to focus on what actually occurred in an incident because to do so ignores the general class of risk that is relevant. WSLHD submitted that the prosecutor’s approach of focussing on subjective complaints by the nurses invited hindsight reasoning in proving that a risk of psychological harm existed. WSLHD also contended that proof that the nurses suffered psychological harm was not admissible to prove the breach of duty but was only relevant to penalty.

23. I do not accept WSLHD’s submissions for the reasons that follow.

24. WSLHD misconceives the prosecutor’s case, which is that a risk of psychological harm was not adequately controlled because WSLHD failed to apply the policies that it had in place. It is common ground and can be accepted that WSLHD recognised that investigation or disciplinary procedures were a psychosocial hazard that could give rise to a risk of physical or psychological harm and in response, it devised and implemented a significant volume of overlapping policies to control the risk. The prosecutor’s case is that the failure to apply those policies adequately to this investigation process, caused the nurses to suffer stress or was likely to do so. This is a case that demands focus on what actually occurred, because the alleged breach of duty is a failure to apply the policies in the specific circumstances. The guidance material suggests that stress that is prolonged and/or severe can give rise to a risk of physical or psychological harm. In my view, the statements of the nurses to others that they were experiencing stress or other feelings consistent with experiencing stress is evidence that is relevant to establishing whether there was a risk of physical or psychological harm and thereby if WSLHD breached its s 19(1) duty.

25. WSLHD’s submission overstated the importance of proving that the nurses were experiencing stress. Assuming that the prosecutor demonstrates that the nurses were experiencing stress, how the court will be required to apply that evidence is subject to a number of relevant considerations.

26. It would be highly unusual if a worker who was the subject of a workplace investigation did not suffer some stress by reference to the fact of the investigation, even if they were entirely innocent of any wrongdoing and later exonerated. This is reflected in the guidance material that provides that the stress must be prolonged and/or severe. Management action such as investigating and dealing with inappropriate conduct by workers is a part of conducting a business or undertaking that will ordinarily involve a worker suffering stress, but that must be balanced against the duty to eliminate or minimise psychosocial risks that may arise from the process, so far as that is reasonably practicable.

27. This case must be distinguished on its facts from cases where exposure to a hazard will automatically prove exposure to the risk. For example, in Prime Marble & Granite Pty Ltd v SafeWork NSW [2024] NSWCCA 105 SafeWork NSW conducted onsite air quality testing and knew that the workers were being exposed to silica dust at the PCBU’s site that was in excess of the prescribed safe exposure limit. The analogy to be drawn in this case is that the nurses may have been exposed to stress, but it is still necessary for the prosecutor to prove that it was stress of the requisite kind that may give rise to a physical or psychological injury.

28. Stress affects individuals differently and some individuals are more susceptible to psychological harm. An individual may have an unforeseeable reaction to a relatively innocuous event: Tame v New South Wales (2002) 211 CLR 317. The foreseeability of the impact of stress on a worker will depend on what the PCBU knows or ought to have known about the circumstances of the worker, the psychosocial hazards in the workplace and the system of work. It may be that an unforeseeable response by a worker to a psychosocial hazard is not reasonably practical to guard against but will depend on the circumstances of the case.

29. To this point, there is no evidence that WSLHD knew that either of the nurses suffered from a mental condition. Some of the medical evidence admitted over objection appears to demonstrate that the RN did suffer from a chronic mental condition and that she was receiving treatment for it, which is relevant to the foreseeability of the risk.

30. Finally, I am not persuaded that the proof of exposure to some risk is an irrelevant consideration in determining a s 33 offence. An element of a s 32 offence is exposure to a risk of death or serious injury or illness. Obviously any evidence tendered to prove exposure to a risk of death, serious injury or illness in proceedings for a s 33 offence would be irrelevant. However, I see no reason why proof of exposure to a lesser risk, such as the risk of physical or psychological injury is prohibited where breach of duty will be proved if such a risk to the health of a worker exists.

Conclusion

31. For these reasons, I am satisfied that the nurses’ statements regarding their subjective feelings to others is relevant and admissible.

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Endnotes

Decision last updated: 10 March 2025